Hall, Charles Bradley v. The State of Texas--Appeal from 351st District Court of Harris County

Dismissed and Opinion filed October 3, 2002.

In The

Fourteenth Court of Appeals

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NOS. 14-02-00197-CR;

14-02-00198-CR

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CHARLES BRADLEY HALL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause Nos. 858,559 & 885,591

O P I N I O N

Appellant pled guilty on November 16, 2000, to the offenses of burglary of a habitation and burglary of a building. In accordance with the terms of a plea bargain agreement in cause number 858,559, the trial judge deferred adjudication of guilt and placed appellant on community supervision for four years. In accordance with the terms of a plea bargain agreement in cause number 885,591, the trial judge sentence appellant to two years= incarceration in the Texas Department of Criminal Justice, Institutional Division. In cause number 858,559, the State filed a motion to adjudicate guilt. After a hearing, the trial court found appellant guilty and assessed punishment at confinement for one year in the State Jail Division of the Texas Department of Criminal Justice.

In both causes, appellant filed timely pro se notices of appeal and alleged the substance of the appeals would address a jurisdictional defect. See Tex. R. App. P. 25.2(b)(3). The requirements of Rule 25.2(b)(3) apply to an appeal from a judgment adjudicating guilt when, as in the present case, the State recommended deferred adjudication probation at the original plea. Watson v. State, 924 S.W.2d 711, 714 15 (Tex. Crim. App. 1996). In an appeal from a judgment rendered on the defendant=s plea of guilty under Code of Criminal Procedure article 1.15, where the punishment does not exceed that recommended by the prosecutor and agreed to by the defendant, Rule 25.2(b)(3) requires the notice of appeal to either (1) specify that the appeal is for a jurisdictional defect, (2) specify that the substance of the appeal was raised by written motion and ruled on before trial, or (3) state that the trial court granted permission to appeal. Tex. R. App. P. 25.2(b)(3). This rule does not mean, however, that an appellate court=s jurisdiction is properly invoked by the filing of a specific notice of appeal complying only in form with the extra-notice requirements of Rule 25.2(b)(3). Betz v. State, 36 S.W.3d 227, 228 (Tex. App.BHouston [14th Dist.] 2001, not pet.). An appellant must, in good faith, comply in both form and substance with the extra-notice requirements of the rule. Id. Not only must the specific notice of appeal recite the applicable extra-notice requirements, the record must substantiate the recitations in the notice of appeal and the issues raised in the brief must relate to the specific claims in the notice of appeal. Betz, 36 S.W.3d at 228-29. Noncompliance, in either form or substance, results in a failure to properly invoke the appellate court=s jurisdiction over an appeal to which Rule 25.2(b)(3) is applicable. Id.

Although appellant filed notices of appeal alleging that he would raise jurisdictional defects, appellant=s brief does not raise a jurisdictional defect. Instead, appellant claims he was denied ineffective assistance of counsel when his attorney filed to advise the trial court during plea proceedings of appellant=s bi-polar disorder, appellant=s attention deficit hyperactivity disorder, and his recent admission to a hospital for residential treatment.

The State has filed a motion to dismiss these appeals on the ground that we have no jurisdiction because the notices of appeal are defective, appellant waived his right to appeal, and appellant is improperly challenging the voluntariness of his plea. We agree that appellant=s notices of appeal failed to invoke this Court=s jurisdiction.

While appeal of jurisdictional defects is permitted under Tex. R. App. P. 25.2(b)(3), appellant=s brief does not raise issues involving jurisdiction. The only issue raised concerns ineffective assistance of counsel during the plea proceedings. Therefore, we are without jurisdiction to consider appellant=s issue.

In connection with cause number 858,559. there is an additional reason to dismiss. Given the plain meaning of Article 42.12, section 5(b) of the Code of Criminal Procedure, an appellant whose deferred adjudication probation has been revoked and who has been adjudicated guilty of the original charge, may not raise on appeal contentions of error in the adjudication of guilt process. Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999); Tex. Code Crim. Proc. Ann. Art. 42.12 ' 5(b) (Vernon Supp. 2001). Appellant may only raise issues that occur after adjudication of guilt and assessment of punishment. See Ditto v. State, 988 S.W.2d 236, 238 (Tex. Crim. App. 1999). Nor may we now consider any complaint concerning the original plea because those had to have been raised when deferred adjudication community supervision was first imposed. Manuel v. State, 994 S.W.2d 658, 661 62 (Tex. Crim. App. 1999).

Accordingly, we grant the State=s motion and dismiss the appeals for want of jurisdiction.

PER CURIAM

Judgment rendered and Opinion filed October 3, 2002.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.3(b).